2016Du1163. Invalidity of resolution by the board of directors

A

A Incorporated Foundation B

Special Representative C

1. D;

2. E:

3. F;

4. G.

5. H;

June 1, 2017

June 29, 2017

1. The defendant

A. On October 23, 2014, the board of directors, on the board of directors, appointed the Plaintiff as the chief director; the Intervenor E, H, D, and F as the director; and the G as the auditor, respectively;

B. On December 1, 2015, the board of directors dismissed the Plaintiff from office as chief executive officer, and a resolution appointing Defendant Intervenor D as chief executive officer, J as chief executive officer, Defendant Intervenor E as chief executive officer, and Defendant Intervenor E as provisional branch agent is adopted:

confirm that each invalidation is void.

2. Of the costs of lawsuit, the part arising from the participation by the Defendant is assessed against the Intervenor, and the remainder is assessed against the Defendant, respectively.

The same shall apply to the order.

1. Basic facts

A. On March 12, 2004, the Defendant Foundation held an inaugural general meeting and appointed L as the chief director, the Plaintiff, M, N, andO (pre-name P) as directors, and E as auditors, and their terms of office are four years, respectively.

B. This was around April 2004 and around August 2004, N did not visit the Defendant Foundation or the company from the time of leaving the inspection as an inspector operated by Defendant Foundation to the time of 2015. On the other hand, L, M, and the Plaintiff still participated in the operation of Defendant Foundation even after the term of office as the president and the director of Defendant Foundation expires on March 2008. M was retired from the office around December 2008, and L was killed as a traffic accident around October 2014.

C. After October 23, 2014, the Defendant Foundation held a board of directors meeting on October 23, 2014, and made a resolution to appoint the Plaintiff as the chief director, the first director, and the Intervenor G as the auditor (hereinafter “the first board of directors resolution”), and only the Plaintiff was present as the director.

D. On December 1, 2015, the Defendant Foundation held a board of directors to dismiss the Plaintiff at the chief director and the first director’s office. The Intervenor D as chief director, J as chief director, the Intervenor E as chief director, and the Intervenor E as temporary branch agent (hereinafter “the second board of directors’ resolution”). The above resolution was made by the Intervenor E, H, D, and F attended each of the directors.

E. Meanwhile, the articles of incorporation of the Defendant Foundation relating to the instant case are as follows.

Article 15 (Kinds and Fixed Number of Officers)

(1) The kinds and number of executive officers in this corporation shall be as follows:

1. Five directors;

2. One auditor.

(2) The directors referred to in Article 1 shall include the chief director.

Article 17 (Term of Office of Officers)

(1) The term of office of directors shall be four years, and that of an auditor shall be two years: Provided, That the term of office of a half of the first executive shall be determined by the period equivalent to

Article 18 (Method of Appointment of Officers)

(1) Directors and auditors shall be appointed by the board of directors.

(3) If a vacancy occurs in the office of directors or auditors, the vacancy shall be filled within two months.

Article 24 (Quorum for Resolution)

(1) The board of directors shall be convened with attendance of the majority of registered directors.

(2) Proceedings of the board of directors shall be resolved with the consent of a majority of the members present: Provided, That where the same number is equal, the chairperson shall determine and shall not delegate his/her voting rights.

[Grounds for recognition] The entry of Gap evidence Nos. 1 through 11 and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

Before the resolution of the first board of directors, L had already died, M had resigned, and N andO had expired, so only the Plaintiff was the only director at the time of the said resolution. When interpreting Articles 15 and 24 of the articles of incorporation of the Defendant Foundation in an organic manner, the said resolution is null and void as a resolution of the board of directors that only the Plaintiff was present as a director, and the said resolution is null and void as a resolution of the first board of directors without meeting a quorum. An intervenor E, H, D, and F, who was appointed through the resolution of the first board of directors, is not a legitimate director, and the second board of directors’ resolution was passed without meeting a quorum as stipulated in the articles of incorporation, is also null and void.

B. The defendant and the intervenor's assertion

If an organic interpretation of Articles 15 and 24 of the Articles of the Foundation’s articles of incorporation of the Defendant Foundation is made, the attendance of the majority of the registered directors alone meets the quorum of the board of directors. At the time of the resolution of the first board of directors, only the Plaintiff was the only registered director at the time of the resolution of the said first board of directors. Thus, the above resolution can be seen as valid resolution with the quorum and the quorum. Since the Intervenor E, H, D, and F, appointed through the resolution of the first board of directors, are legally registered directors, the resolution of the second board of directors is valid as a resolution with the quorum and the quorum stipulated in the articles

C. Determination

1) The validity of the first resolution of board of directors

If the law or articles of incorporation provides that the number of the directors shall be determined by the majority of the directors in order to meet the quorum of the directors, and if the number of the directors in the board of directors falls short of the majority of the directors in the board of directors, the majority of the directors in the board of directors shall be present, and if the number of the directors in the board of directors falls short of the majority of the number of the directors in the board of directors, the majority of the directors in the board of directors shall be present, and if the number of the directors in the board of directors falls short of the majority of the number of the directors in the board of directors, the majority of the directors in the board of directors

In the case of this case, Article 15 (1) of the articles of incorporation of the defendant foundation states that "the kinds and number of the officers assigned to this corporation shall be as follows: 5 directors; 2. 1 auditors; and 24 (1) "the board of directors shall be held with attendance of a majority of the directors registered at the board of directors at the board of directors at the board of directors at the board of directors at least 3 directors shall attend the board of directors at least in order to meet the quorum for the opening of the board of directors at least 3 directors at the time of the first resolution of the board of directors at the board of directors at the time of the first resolution of the board of directors, since the above resolution of the board of directors at the board of directors at the time of the first resolution at the board of directors at the board of directors at the time

2) The effects of the second resolution of board of directors

As seen above, the first resolution of the board of directors is null and void. As such, an intervenor E, H, D, and F selected as a director through the said resolution is not a lawful director, and the second resolution of the board of directors is also null and void as a resolution that did not meet a quorum for opening the meeting.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

The presiding judge and assistant judges;

Judges removed;

Judges Kim Gin-soo

1) Although the "subject matter resolved" in the minutes of the meeting of the board of directors under the evidence No. 5 No. 5 does not state the appointment of this director, E is also deemed to have been appointed as a director at the above board of directors in light of the fact that the list of appointed directors includes E.

2. Method of setting the lower limit: Not more than ten persons, and the method of setting the number of specific persons: Ten persons.